Guest post by Enrica Rigo. Enrica is Associate Professor at the University of Roma Tre where she holds the chair in Philosophy of Law and coordinates a legal clinic programme on migration and asylum. She earned her PhD in ‘Philosophy of Law, Social and Political Theory’ at the University of Naples and was formerly Jean Monnet Fellow at the European University Institute in Florence. Her research interests include critical legal theory, theories of citizenship, gender and border studies. She is the author of numerous articles on migration, borders, justice and asylum in gender perspective. For the last 20 years, Enrica has been involved as an activist in the movement to support of migrants’ rights. This is the final post of the Border Criminologies’ themed series ‘The Changing Dynamics of Transnational Borders and Boundaries’, organised by Cristina and Giulia.  

The number of women crossing the Mediterranean to seek asylum in Italy has dramatically increased since 2014, thus revealing a phenomenon that had previously been overlooked by Italian critical migration scholars. The claim for international protection has generally been considered either a technical legal matter or a slippery path that ends up confirming a hierarchy between economic and forced migration. Not surprisingly, little attention has been paid to the issue of asylum as a terrain of radical struggles and as a means to reclaim political subjectivity. In this post, I suggest that the issue of asylum and international protection represents a testing ground for the theoretical perspective of border performance, intended as ‘the idea that borders are not only geographically constituted, but are socially constructed via the performance of various state actors in an elaborate dance with ordinary people who seek freedom of movement and identification’. The lens of asylum demonstrates how the performativity of legislation interacts with the performativity of gender roles, as well as how the performativity of institutionally imposed borders is renegotiated by those who cross them.

Photo: Francesco Bellina

https://www.theglobeandmail.com/news/world/sex-slavery-african-women-in-italy/article34895329/

This posts draws on the analysis of administrative and judicial decisions issued by the Territorial Commission (TC) and the Tribunal of Rome regarding the cases of more than fifty Nigerian women who sought asylum in Italy during the summer of 2015 and early 2016. While the TC is an administrative body competent for processing asylum cases, the Tribunal is competent for the judicial review of appealed first instance decisions as well as for the review of the detention of asylum seekers.  The sea arrivals of Nigerian women in Italy have increased by more than 400% in recent years, and official reports often warn that a large number of them may be victims of trafficking. Nonetheless, they have also been the target of detention and deportation (GRETA). The case study shows how female asylum seekers are often trapped between competing portrayals of being seen as victims or being blamed for deviant behaviour. At the same time, gendered and sexed roles are also played out by the women themselves as strategies for crossing borders and for acquiring legal status (for further discussion, see Rigo).

Thinking about refugee law in terms of performativity brings to mind the words of Guy Goodwin-Gill and Jane McAdam who noted that ‘the term “refugee” is a term of art, that is a term with a content verifiable according to principles of general international law’. In other words, the refugee is produced by the fiction that the law projects onto the use of this term; by law, the term signifies someone in flight for circumstances found to be unbearable, the destination being irrelevant. The fugitive from ordinary justice and the economic refugee are not included in this legal category to the extent that the ‘genuine’ refugee must not be found responsible for her choice to flee. As a consequence of this lack of choice the refugee, by definition, remains on the outside of political communities: both the sending community, of which she has lost protection, but also the receiving community the membership of which is defined (in liberal terms) by the consent to the founding agreement of citizenship. In addition, feminist legal scholarship has highlighted how refugee law must be performed according to male-gendered roles (Tuitt; Edwards). The causes established by the Geneva Convention as grounds for prosecution – race, religion, nationality, membership of a particular social group and political opinion – mirror the public-private dichotomy and therefore prioritize the public/male sphere. This does not mean that women do not experience prosecution for these same reasons, but rather that violence usually directed towards women, such as sexual or domestic violence, is hardly recognised as valid grounds for international protection (Arbel et al.).

The case study shows how the decisions on asylum issued by the TC of Rome, as well as the decisions of courts in detention cases, embody both border and gender performativity. While in a number of cases the detention of female asylum seekers was justified in the court’s reasoning on the basis of their need to be protected, the question of consent played a key and ambivalent role with regards to asylum decisions. All the seven positive decisions of the TC (which did not grant international protection but rather a form of humanitarian protection legislated at national level) were based on the women’s consensus to join a rehabilitation programme for trafficked victims. In contrast, the capacity of a woman to escape from violence on her own accord was considered evidence of her free choice to reach Italy and therefore a ground to dismiss her claim. Nevertheless, the research (which is ongoing) also shows that in most cases the decisions issued by the TC have been reversed by the Tribunal of Rome, which has gradually moved towards recognising gender violence and the risk of being re-trafficked as grounds for protection. For example, in a notable case the court recognised subsidiary protection to a woman who had been repatriated during the asylum procedure but had been subsequently able to return to Italy. The decision considered repatriation itself among the causes for the woman’s vulnerability.

My research confirms that border performance is a complex assemblage of acts that reaffirm but also deconstruct gender roles and hierarchies, both from an institutional point of view and from the perspective of those who cross borders. The women who cross the Mediterranean searching for asylum challenge the role assigned to them as gendered victims, contest vulnerability as a protection status and question the liberal conception of consent and citizenship as the bond of the political. 

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How to cite this blog post (Harvard style) 

Rigo, E. (2018) Performing Asylum in a Gender Perspective: Women’s Struggles across the European Southern Border. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2018/06/performing-0 (Accessed [date]).